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General Protections

The General Protections provisions of the Fair Work Act 2009 provide a range of legal protections for a person, including for making a complaint in relation to the employment and other protected attributes.

What are the General Protections?

The Fair Work Act 2009 (FW Act) provides that it is unlawful to take adverse action against another person because that person:  

  • has a workplace right  
  • has or has not exercised that workplace right 
  • proposed to or proposed not to exercise the workplace right  
  • prevent the exercise of the workplace right 
  • is a member of an industrial association (trade union)  
  • engages in, or proposes to engage in industrial activity 
  • does not engage or proposes not to engage in industrial activity 

 

The FW Act further provides that it is unlawful to take adverse action against another person because of that person’s:

race, colour, sex, sexual orientation, breastfeeding, gender identity, intersex status, age, physical or mental disability, marital status, family or carer’s responsibilities, subjection to family and domestic violence, pregnancy, religion, political opinion, national extraction or social origin, subject to exceptions in the FW Act, including for the inherent requirements of the position. 

The provisions further provide that it is unlawful to:  

  • dismiss someone because of a temporary absence due to illness or injury  
  • dismiss someone to engage them as an independent contractor for substantially the same work  
  • dismiss someone to engage them as a casual for substantially the same work
  • and other protections, including in relation to workplace delegates’ rights, misrepresentation and sham arrangements. For further information, please contact Henry Bournes. 

What is a workplace right?

The definition is complicated, but the FW Act provides that a person has a workplace right if the person:  

  • is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument, or order made by an industrial body; or
  • is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or
  • is able to make a complaint or inquiry to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or
  • if the person is an employee, in relation to his or her employment.

Who is eligible to make a claim?

Anyone affected by adverse action because of a protected reason may make a general protections claim. This includes employers, employees, prospective employees, independent contractors, principals, unions, and union members. 

What does adverse action mean?

Adverse action has a very complicated meaning, but in relation to an employee means:  

  • dismissal or termination of employment 
  • injured in the employment (treated substantially differently)  
  • having the position altered (the employment is intentionally deteriorated)  
  • being discriminated against (treated less favourably than other employees). 

Involving dismissal or not involving dismissal

A general protections claim can therefore be:  

  • involving dismissal, or  
  • not involving dismissal. These are different actions. 

When to make the claim

Involving a dismissal: For a general protections claim involving dismissal, an employee must lodge an application with the Fair Work Commission (FWC) within 21 days of the dismissal taking effect. This deadline is strict.  

Not involving a dismissal: for a general protections claim not involving a dismissal, a complaint must be raised within six years of the conduct. 

What does dismissed mean?

It may sound obvious, but the employee must be dismissed to make a General Protections dismissal application. Under the FW Act, ‘dismissed’ means that the employment was terminated at the initiative of the employer. Please note:

  • A person who has resigned is usually taken to have not been dismissed, unless they can show that they were forced to resign. ‘Constructive dismissal’, as it is known, is something frequently raised by employees, but only rarely recognised by the FWC.
  • An employee engaged for a specified period of time or engaged for a specified task and whose time has expired is taken not to have been dismissed.
  • A person who has been demoted and who continues to work is also not taken to have been dismissed unless the demotion is a significant reduction in pay or duties.

Jurisdictional objections

A jurisdictional objection is where a Respondent argues that the FWC does not have the power to deal with the dispute. In relation to a general protections dismissal dispute, there are several possible jurisdictional objections:  

  • The Application is out of time (i.e., the application has not been made within 21 days).  
  • The Applicant was not an employee (for example, they were an independent contractor). 
  • The Applicant was not dismissed (i.e., they were not terminated at the initiative of the employer. For example, they resigned.  
  • The Applicant has already made another application relating to the dismissal. 

Remedies

If parties agree, a general protections dispute can progress to FWC arbitration. However, it is more common for a claim to progress to a federal court. If a general protections dispute progresses to court, the court may make any order it sees fit, including:  

  • injunction 
  • compensation for past and future economic loss 
  • damages  
  • reinstatement  
  • pecuniary penalty orders. 

General Protections claims are legally complex. If you require advice or assistance in relation to a General Protections or other discrimination claim please click ‘book now’ for a confidential consultation. This information only relates to employees under the Fair Work Act (Cth) 2009 only. It is information only and is not legal advice.

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